State v. Miller
| Decision Date | 15 April 1997 |
| Docket Number | No. A-96-099,A-96-099 |
| Citation | 562 N.W.2d 851,5 Neb.App. 635 |
| Parties | STATE of Nebraska, Appellee, v. Michael E. MILLER, also known as Michael Eugene Miller, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Postconviction: Appeal and Error. An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion.
2. Postconviction: Proof. An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution.
3. Indictments and Informations: Double Jeopardy. An information shall advise the accused of the nature and cause of the accusation against him in order that he may meet the accusation and prepare for his trial and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense.
4. Indictments and Informations: Appeal and Error. An information first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense of which the accused was convicted.
5. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and thereby obtain reversal of a conviction, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the results of the proceeding would have been different.
Michael E. Miller, pro se.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
Michael E. Miller was convicted by a jury of three counts of forgery in the second degree. Through a second motion for postconviction relief, Miller asked the district court for Douglas County to overturn the guilty verdicts for counts II and III of forgery in the second degree. The district court denied Miller's motion without an evidentiary hearing, and he now appeals to this court.
On July 29, 1993, Miller was charged in an information with three counts of forgery in the second degree in an amount over $300, a Class III felony, in violation of Neb.Rev.Stat. § 28-603 (Reissue 1995). Counts I, II, and III of the information alleged that
on or about the 19th day of July, 1993, MICHAEL E. MILLER ... with intent to deceive or harm, did then and there falsely make, complete, endorse, alter or utter a written instrument with a face value of $300.00 or more, which was or purported to be, or which was calculated to become or to represent if completed, a written instrument which does or may evidence For each count, there was included a photocopy of the check Miller was alleged to have cashed. On the day trial was scheduled to commence, May 19, 1994, the State amended the information to include an additional charge of habitual criminal (count IV) under Neb.Rev.Stat. § 29-2221 (Cum.Supp.1994). At the time the State amended the information, it omitted the allegation "with intent to deceive or harm" in counts II and III. Miller waived the formal reading and 24-hour service of the amended information, and jury selection began. Trial was held May 19 and 20, and Miller was found guilty on all three counts of forgery.
create, transfer, terminate, or otherwise affect a legal right, interest, obligation or status[.]
Following trial, Miller was assigned new counsel and appealed to this court alleging that there was insufficient evidence to convict, his trial counsel rendered ineffective assistance, and he was given excessive sentences. After reviewing the record, we affirmed the convictions. See State v. Miller, 95 NCA No. 18, case No. A-94-801, 1995 WL 255930 (Neb.App.1995) ().
On September 29, 1995, Miller filed a motion for postconviction relief, requesting an evidentiary hearing and requesting that the convictions for counts II and III be set aside or, alternatively, that he be granted a new trial on those counts. Miller alleged that his constitutional right to due process was violated because counts II and III of the amended information omitted essential elements necessary to charge a crime. Miller also claimed that his constitutional right to effective assistance of counsel was denied because both his trial counsel and appellate counsel failed to discover this error.
The district court found that this was Miller's second request for postconviction relief and stated that Miller's first motion had been overruled because the allegations in it were similar to those in Miller's direct appeal. In denying Miller's current postconviction relief motion, the court noted that Miller did not appeal that ruling. Consequently, the district court held that Miller was procedurally barred from raising the issue of the defective information because the error could have been discovered at the time Miller filed his first motion for postconviction relief.
The court further found that the original information included the language "with intent to deceive or harm" in both counts II and III and determined that the omitted allegation was the result of a scrivener's error. The court reasoned that if the error had been raised at trial, presumably the prosecution would have requested, and been granted, leave to amend counts II and III to include the omitted language. Additionally, the court observed that the jury had been properly instructed on each essential element of the offenses. Thus, although the district court found that Miller's counsel had been deficient in failing to discover the defect, it concluded that Miller suffered no prejudice as a result. Accordingly, the court denied Miller's motion without an evidentiary hearing and he filed a timely appeal to this court.
Before proceeding further, we point out that the Nebraska Supreme Court and Court of Appeals rules of practice and procedure provide that the brief of an appellant shall contain, among other things, the following:
A separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error. Each assignment of error shall be separately numbered and paragraphed, bearing in mind that consideration of the case will be limited to errors assigned and discussed. The court may, at its option, notice a plain error not assigned.
(Emphasis supplied.) Neb. Ct. R. of Prac. 9D(1)d (rev. 1996).
Of the errors assigned, those that were actually discussed in Miller's brief can be
restated as follows: The district court erred in not granting an evidentiary hearing on Miller's second motion for postconviction relief because the amended information failed to allege the element of "intent to deceive or harm" in counts II and III, and Miller received ineffective assistance of counsel at trial and on direct appeal because both counsel failed to challenge the sufficiency of the amended information.
A court is not required to grant an evidentiary hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidentiary hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant, or (2) notwithstanding proper pleadings of facts in a motion for postconviction relief, the files and records in the movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable. State v. Schoonmaker, 249 Neb. 330, 543 N.W.2d 194 (1996).
An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings. State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996). Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. State v. Veiman, 249 Neb. 875, 546 N.W.2d 785 (1996); State v. Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994).
Procedural Bar.
We first address the State's contention that Miller is procedurally barred from bringing this second motion for postconviction relief because Miller could have raised both issues in his first postconviction relief motion. Although generally an appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion, State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995), the Supreme Court has held that when an information is insufficient to charge a crime, the issue may be raised at any time as plain error, see State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996). Accordingly, we must analyze Miller's claim that the amended information was insufficient to charge him with a crime.
Sufficiency of Amended Information.
An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. State v. Parmar, 249 Neb. 462, 544 N.W.2d 102 (1996); State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995); State v. Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994).
Miller...
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State v. Clark, A-99-282.
...and if convicted, may plead the judgment of conviction on the charge as a bar to a later prosecution. See, State v. Miller, 5 Neb. App. 635, 562 N.W.2d 851 (1997); State v. Newman, 5 Neb.App. 291, 559 N.W.2d 764 (1997). In reviewing the record before us, we do not see an abuse of discretion......